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Civil Revision No. 78 of 1972, decided on Ist March, 1980.

- S. 115 and Arbitration Act (X of 1940), S. 39 (1) (vi)--Revision Trial Court making award rule of Court without notice to petitioner and affording opportunity to parties to raise objection-Such matter to circumstances, held, does not fall within scope of cl. (vi) of sub section (i) of S. 39-Revision petition maintainable in circumstances of case.-[Revision].

- S. 115 and Arbitration Act (X of 1940), S. 14 (2)--Notice---Award made rule of Court without service of notice under S. 14 (2) Order set aside and case remanded to trial Court for giving opportunity to petitioner to, file objections.-[Award].

Mian Mohyuddin Ahmad for Appellant.

Nemo for Respondents.

Date of hearing : 1st March, 1980.

This petition calls in question an order making an award a rule of the Court without giving an opportunity to the petitioner to file objections to it.

2. The facts are that on an agreement to refer the matter to arbitra tion, Khadim Hussain Arbitrator made an award on the 9th February, 1971. The respondent, Mirza Muhammad Ashraf, filed a petition for making the award a rule of the Court on the 7th May, 1971, on which notice was directed to be issued to the petitioner. Since the petitioner did not put in appearance, he was directed to be proceeded against ex parte on the 30th October, 1971. For the first time an order was passed that day directing the Arbitrator to file the award. The award was filed on the next date i. e. 14th December, 1971. The learned trial Court recorded the statement of the Arbitrator formally before the court. and it was exhibited as Exh. Ali Ashraf respondent appeared as A. VG. 2 and stated that the award was acceptable to him. On the basis of these two statements, the learned trial Court ordered the award to be made a rule of the Court.

3. The first question in this case is whether the revision petition is competent. I am of the view that there can be no objection to the of this revision petition in view of the circumstances of this case. Section 39 of the Arbitration Act provides for orders which are appealable. One of the categories of the orders is where it is against the order setting aside or refusing to set aside an award. If the learned that Court had issued notice after the cling of the award to the petitioner about the filing; of the award and had given him an opportunity of raising objection within the time fixed by the Limitation Act, the matte would have fallen within the clause (vi) of subsection (1) of section 39 of the Arbitration Act and the judgment would have been appealable, since tire order would have amounted to an order refusing to set aside fan award. But in the present case, that opportunity was never afforded. In these circumstances, it cannot be said that the matter fell within the scope of clause (ii) of subsection (1) of section 39. The only other remedy is by revision petition which has been purchased by the petition

4. On merits this petition must succeed since it was incumbent upon the Court to serve a notice upon the petitioner about the filing -of the award under section 14 (21 of the Arbitration Act, .which provides that after the filing of the award the Court shall give notice to the parties of such filing. This notice is given to afford an opportunity to the parties to raise objection, if any, within the period of limitation, i.,e.30 days as, provided by article, 158.

5. The revision petition is accepted with costs, the order and decree is set aside and the matter is remanded to the learned trig Court to give at, opportunity to the petitioner to file necessary objections.

M, A. K. Revision accepted Case remanded.

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